The opinion of the court was delivered by: HERLANDS
The Government has moved for summary judgment (Fed.Rules Civ.Proc. rule 56, 28 U.S.C.A.) dismissing the complaint as a matter of law, on the ground that there is no issue of material fact, that all administrative proceedings heretofore had have been proper in all respects, and that the finding of the petitioner's deportability is proper.
challenges the validity of an order of deportation for the asserted reason that the petitioner does not come within a deportable class, as defined by the controlling statute. 8 U.S.C.A. § 1251(a)(4), Immigration and Nationality Act, § 241(a)(4).
In support of its motion for summary judgment, the Government has submitted to the Court the entire administrative record (Exhibit 'A').
As stated in the Government's moving affidavit (para. 7): 'The sole issue raised in the complaint is an issue of law, to wit, whether or not as a matter of law the Immigration and Naturalization Service was correct in concluding that the crimes for which petitioner was convicted did not arise out of a single scheme of criminal misconduct.' Petitioner, in his opposing affidavit (para. 4), concludes: 'I join with the government in requesting a determination of the legal questions involved.'
The relevant part of the controlling statute, 8 U.S.C.A. section 1251(a)(4), provides:
'Any alien in the United States * * * shall, upon the order of the Attorney General, be deported * * * who at any time after entry is convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial * * *.' (Emphasis supplied.)
The precise and sole point of controversy is whether the larcenies (on which the Government relies for deportation purposes) arose 'out of a single scheme of criminal misconduct.'
The administrative record (Exhibit 'A') discloses that a hearing was held on September 28, 1954 at Auburn State Prison, Auburn, New York. The record of that hearing consists of a stenographic transcript of ten pages and ten exhibits.
The petitioner waived the right to counsel at the hearing.
Exhibit '1' introduced at the September 28, 1954 hearing was a copy of the warrant of arrest, issued on July 1, 1954, and served on July 30, 1954. The warrant recites, inter alia, as the reason for deportation, that Jeronimo, after entry, had been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct, 'to wit. Grand Larceny, 1st (four separate offenses).' When precisely the same ground was incorporated in a question by the Special Inquiry Officer, Jeronimo answered, 'Yes, it is only one scheme' (transcript, p. 2).
The indictment (Exhibit '7') and the convictions and sentences thereunder (Exhibit '8') disclose that an eightcount indictment was filed on October 13, 1949 against Jeronimo (as 'Jerome') and two others and that Jeronimo was found guilty of six counts by a jury on April 4, 1950, viz. counts 1, 2, 3, 5, 7 and 8; and that he was sentenced on April 27, 1950.
The first count of the indictment charges 'conspiracy.' The second, third, fifth and seventh counts charge 'grand larceny in the first degree.' The fourth, sixth and eighth counts charge 'bribing a public officer.' (The second, third, fifth and seventh larceny counts are the counts relied on by the Government herein for deportation purposes.)
The first count fixes the period of the conspiracy as 'from on or about March 1, 1947 and continuously up to on or about January 7, 1949. It alleged that the defendants 'conspired * * * to commit the crimes of bribing a public officer, grand larceny in the first degree * * *.' (Emphasis supplied.) The conspiracy consisted of a scheme or plan to defraud the City of New York by making false and fraudulent claims for payments for labor and materials supplied to the City under contracts between the the City and the corporate defendant, J. & B. Contracting Co., Inc., for painting the interior surfaces of various municipal buildings. Jeronimo and another defendant, Sam Lemkin (who were stockholders and officers of the corporate defendant) 'agreed and planned' that the corporate defendant should submit bids for contracts to the Department of Hospitals of the City of New York for painting the interior surfaces of various buildings under its jurisdiction.
Part of the conspiracy was that the corporate defendant should submit false vouchers and requests for payments to the municipal authorities in order to represent that the corporate defendant was supplying and had supplied the labor and painting materials in conformity with the contract specifications, whereas the corporate defendant was not supplying, had not supplied and never intended to supply the proper labor and materials.
A further part of the conspiracy entailed the bribing of one Bolfe, and inspector employed by the Department of Hospitals, in order to get him to approve the work to be performed by the corporate defendant at the Metropolitan Hospital, and to approve the defendants' request for payments for work which was to be performed.
This conspiracy count then sets forth nine 'overt acts' in 'furtherance of said conspiracy and to effect the objects thereof.'
Overt act '1,' refers to the date 'on or about April 28, 1947' in connection with a request for partial payment under 'Contract #149122.' (Note that the date and the contract number correspond with the date and contract ...